FAIR USE FIASCO – BE CAREFUL USING *ANY* IMAGE ONLINE by Mike Oliver
The internet is littered with millions of images – taken by professional and amateur photographers alike, that contain NO identification of the author of the image. In part, this may be because it is not known, and in part it could be that the “meta data” in the image – which if done professionally will typically have the author’s name and the claim of copyright embedded as text inside the file (known as EXIF data) – is stripped off.
A recent decision in the 3rd Circuit (Pennsylvania, New Jersey, Delaware, and the Virgin Islands), Murphy v. Millennium Radio Group, LLC, [https://www.ca3.uscourts.gov/opinarch/102163p.pdf] demonstrates how dangerous it is to post on your website an image that does not contain this “copyright management information.”
In Murphy, a professional photographer took a picture of two radio show shock jocks, partially nude, for a print publication. The photographer maintained copyright. A radio station employee scans the image, posts it on the radio station website, and invites people to “photoshop” the image in a contest. No attribution identifying the photographer is given.
The photographer sues and loses in the trial court – essentially because that court believed the use was a fair use or licensed. The appellate court, however, reverses. It holds that under the Digital Millennium Copyright Act, the “copyright management information” includes identification of the author of the image. Of important note – the DMCA for the purposes of this provisions, has no “fair use” defense – in other words, the copyright management information must always be included.
The take away here is that if you are electronically displaying images in which you are not the author, the EXIF file data – the data that is embedded in the image and can be read by software to see the copyright management information – cannot be stripped off the file. In addition, if you are using stock photography, or manage a stock photo site, the EXIF data must be retained in the image.
For more information, please contact Mike Oliver.
Dilemma: You find out that a company has copied an article that you created from your website, and it is using it on its website as if it had written the article itself. You want to stop them from using your article but you do not have a copyright registration for anything on your website. What can you do to stop them?
Copyright registrations offer numerous benefits, including the benefits of bringing an action for copyright infringement to enjoin the infringing company from using your work and obtaining statutory damages. A copyright registration is required to file a lawsuit for copyright infringement. However, even at this stage where a company is using your work and you do not have a registration, you could file an application for copyright registration on an expedited basis and then file an action for infringement. Regarding damages, those are limited in this situation to actual damages, whereas if you had previously obtained a copyright registration, typically you could obtain statutory damages and be eligible attorneys’ fees, which could be significantly higher than actual damages.
In addition, even without a registration, you are still protected under United States copyright laws, and there are options available to you to stop others from using your material without your permission without filing a lawsuit.
One option is to send the infringer a demand letter stating that you are the owner the work, that they are using your material without your authorization, and that they must take it down immediately. Such a letter could cause the infringer to immediately take down the work. Another course of action is to send a notice and takedown letter to the web hosting company (i.e. GoDaddy) indicating that the site is infringing upon your copyright and requesting that the web hosting company take the work down. Additionally, many web hosting companies have their own policies in place, which can typically be found on their website and which will assist a party when their work has been infringed upon.
Also keep in mind that if the possibility of a working relationship could exist between the of the infringer and you or if the exposure may actually be helpful to you by giving you credit for your work, you could try a telephone call first to see if an arrangement can be made where the company can be given a license to use your work. If that does not work, you can proceed with the other options.
For more information, please contact Kim Grimsley.